Burke v. Kingsley Books, Inc.

• Decision Date: 13 June 1955
• Citation: 142 N.Y.S.2d 735,208 Misc. 150
• Parties: Adrian P. BURKE, as Corporation Counsel of The City of New York, Plaintiff, v. KINGSLEY BOOKS, Inc., Martin Kleinberg, Metropolitan Book Shop Inc., Anne Goldberg, Times Square Book Shop, Louis Finkelstein, Pelley Book Shop, Philip Pellegrino, Publishers Outlet, Gordon Law, Defendants.
• Court: New York Supreme Court

Page 735

142 N.Y.S.2d 735

208 Misc. 150

Adrian P. BURKE, as Corporation Counsel of The City of New York, Plaintiff, v. KINGSLEY BOOKS, Inc., Martin Kleinberg, Metropolitan Book Shop Inc., Anne Goldberg, Times Square Book Shop, Louis Finkelstein, Pelley Book Shop, Philip Pellegrino, Publishers Outlet, Gordon Law, Defendants.

Supreme Court, Special Term, New York County, Part VI.

June 13, 1955.

Adrian P. Burke and Peter Campbell Brown, Corp. Counsel of the City of New York (Milton Mollen and Murray Rudman, New York City, of counsel), for plaintiff.

Emanuel Redfield, New York City, for defendants Kingsley Books, Inc. and Martin Kleinberg.

Sidney Glasser, New York City, for defendant Louis Finkelstein doing business as Times Sequare Book Shop.

MATTHEW M. LEVY, Justice.

The Penal Law of this State has for some time made it a misdemeanor to sell or distribute 'any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, phonograph record, picture, drawing, photograph, motion picture film, figure or image, or any written or printed matter of an indecent character', Penal Law, § 1141, subd. 1. More recently, the Legislature enacted section 22-a of the Code of Criminal Procedure, providing that, 'The supreme court has jurisdiction to enjoin the sale or distribution of obscene prints and articles' as defined there and in section 1141 of the Penal Law, and in the event that a final judgment of injunction be issued, the judgment 'shall contain a provision directing the person, firm or corporation [against whom the injunction is granted] to surrender to the sheriff of the county in which the action was brought any of the matter described in paragraph one hereof and such sheriff shall be directed to seize and destroy the same.' The Code section provides further that the person authorized to maintain the action is the chief executive or legal officer in any city, town or village in the State, subd. 1. In the City of New York, the latter official would be the corporation counsel.

Pursuant to section 22 -a, the plaintiff, as Corporation Counsel of the City of New York, has instituted this action against a number of persons, firms and corporations, for the purpose of (1) permanently enjoining the defendants from acquiring, selling or distributing any of the issues of a series of booklets entitled 'Nights of Horror'; (2) directing the defendants to surrender to the Sheriff of the County of New York all issues of the publication within their possession and control; and (3) directing the Sheriff to seize and destroy them. Those defendants who have answered deny the allegation of the complaint that the publication is obscene, and in effect interpose three separate defenses: that the plaintiff lacks the required legal authority to maintain this action; that section 22-a is an unconstitutional restraint on freedom of the press; and that section 22-a violates the constitutional protection against unreasonable seizures. This case has been considered by the parties, and found by the court, to be the first submission of the constitutional issues thought to be involved in the application of section 22-a. (The statute is set forth in the margin). ^*

The act of obscenity has been an offense against the public order for centuries (see Sir Charles Sydlyes Case, 1 Keble 620 [K.B. 1663]; Harris and Wilshere's Criminal Law, 16th ed., pp. 169-170; 1 Bishop on Criminal Law, 9th ed., §§ 500, 504; Alpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40-43). Printed obscenity has been deemed a crime at common law for generations. Commonwealth v. Holmes, 17 Mass. 336; see Grant and Angoff, Massachusetts and Censorship, 10 Boston Univ.L.Rev. 52-56. The essence of the statute now known as section 1141 of the Penal Law was first enacted in the State of New York in 1881, Penal Code, § 317. 'It is to be observed that the statute [then Penal Code, § 317] does not undertake to define obscene or indecent pictures or publications. But the words used in the statute are themselves descriptive. They are words in common use, and every person of ordinary intelligence understands their meaning.' People v. Muller, 96 N.Y. 408, 410.

The fact that the mores of the times change from one generation to another, or that they are not the same in every land and clime, does not render the statutory definition meaningless. See Learned Hand, J., in United States v. Kennerley, D.C., 209 F. 119, 121. Of course, to be constitutionally valid, what is statutorily interdicted 'must be defined with appropriate definiteness.' Pierce v. United States, 314 U.S. 306, 311, 62 S.Ct. 237, 240, 86 L.Ed. 226. Thus it is that 'immoral' (Superior Films, Inc., v. Department of Education, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329, reversing Commercial Pictures Corp. v. Board of Regents, 305 N.Y. 336, 113 N.E.2d 502), 'injurious to public morals' (Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 398, 92 L.Ed. 562), and 'collections of criminal deeds of bloodshed or lust', (Winters v. People of State of New York, 333 U.S. 507, 513, 68 S.Ct. 665, 669, 92 L.Ed. 840) have been held to provide no reasonable, ascertainable standards. In order for the Legislature to achieve reasonable certainty--within constitutional limitations--it is not, however, necessary that the language be narrowed in such a manner as to allow no flexibility; rather, ordinary terms may be used to express ideas which adequately describe that which is prohibited when measured by the modes of common usage and understanding in the community. Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 76 L.Ed. 1167; Jordan v. De George, 341 U.S. 223, 231-232, 71 S.Ct. 703, 95 L.Ed. 886.

Repeated challenges to the definiteness of the term 'obscene' have been rejected. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031; American Civil Liberties Union v. City of Chicago, 3 Ill.2d 334, 347, 121 N.E.2d 585; Lockhart and McClure, Literature, The Law of Obscenity, and The Constitution, 38 Minn.L.Rev. 295, 324-350. There is no question but that the term 'obscene' is sufficiently definite to be used--even in a criminal statute. Winters v. People of State of New York, 333 U.S. 507, 518, 68 S.Ct. 665, 92 L.Ed. 840. 'The Legislature has declared in this section [Penal Law, § 1141] that no obscene, lewd, lascivious, or disgusting book shall be sold. Language could not be plainer.' Crane, J., dissenting, in Halsey v. New York Society for Suppression of Vice, 234 N.Y. 1, 14, 136 N.E. 219, 223. And while it has been thought, United States v. Reese, 92 U.S. 214, 23 L.Ed. 563, that it is not necessarily a basis for vital distinction that a statute imposes no criminal sanctions (and that is true of section 22-a, although it is incorporated in the Code of Criminal Procedure), it is recognized that '[t]he standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement.' Winters v. People of State of New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840.

Some of the defendants have denied that the publications fall within the proscription of section 22-a. The classic legal test for obscenity is 'whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall' (Regina v. Hicklin, L.R. [1868] 3 Q.B. 360, 371). This definition, expressed long ago, seems rather strict and has been often criticized. United States v. One Book Called 'Ulysses', D.C., 5 F.Supp. 182, affirmed United States v. One Book Entitled Ulysses by James Joyce, 2 Cir., 72 F.2d 705; United States v. Levine, 2 Cir., 83 F.2d 156; United States v. Dennett, 2 Cir., 39 F.2d 564, 76 A.L.R. 1092; United States v. Kennerley, D.C., 209 F. 119; Ernst and Lindey, The Censor Marches On, pp. 2, 22, 188; Buchsbaum, Constitutional Law--Censorship--Statutory Construction, 16 Ga.B.J. 494; Lockhart and McClure, op. cit., supra, at 326-350. It nevertheless appears to be the standard sustained by our Court of Appeals, People v. Doubleday & Co., Inc., 297 N.Y. 687, 77 N.E.2d 6, affirmed 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398; People v. Muller, 96 N.Y. 408, 411; People v. Berg, 241 App.Div. 543, 272 N.Y.S. 586, affirmed 269 N.Y. 514, 199 N.E. 513; but see People v. Wendling, 258 N.Y. 451, 453, 180 N.E. 169, 81 A.L.R. 799.

The only question before the court in Besig v. United States, 9 Cir., 208 F.2d 142, was whether the books were obscene. Obscene was defined Id., at page 145, as 'indecent, smutty, lewd or salacious reference to parts of the human or animal body or to their functions * * *.' The court found the books in that case to be just that, and the language therein 'related without the slightest expressed idea of its abandon.' (ibid.) Judge Stephens felt that not only must the young and pure be protected, but that the Congress must have realized, when the statute there involved [19 U.S.C.A. § 1305(a)] was passed, 'that salacious print in the hands of adults, even in the hands of those whose sun is near the western horizon, may well incite to disgusting practices and to hideous crime.' 208 F.2d at page 146. The court continued: 'We share the general antipathy to censorship and we are aware that individual tastes and special occasions and different times and different peoples differ as to what is offensive language. Yet we risk the assertion that there is an underlying, perhaps universal, accord that there is a phase of respectable delicacy related to sex, and that those compositions which purposefully flaunt [flout?] such delicacy * * * come under the ban of the statute.' Id., at page 147.

In determining what is obscene in any particular case, ' [t]he law will not hold the crowd to the morality of saints and seers' (Cardozo, Paradoxes of Legal Science, p. 37)....